§16-3C-2. Testing.. (a) HIV-related testing on a voluntary basis should be
recommended by any healthcare provider in a health facility as part
of a routine screening for treatable conditions and as part of
routine prenatal and perinatal care. A physician, dentist, nurse
practitioner, nurse midwife, physician assistant or the
commissioner may also request targeted testing for any of the
following:

(1) When there is cause to believe that the test could be
positive. Persons who engage in high risk behavior should be
encouraged to be screened for HIV at least annually;

(2) When there is cause to believe that the test could provide
information important in the care of the patient; or

(3) When there is cause to believe that the results of HIV-
testing of samples of blood or body fluids from a source patient
could provide information important in the care of medical or
emergency responders or other persons identified in regulations
proposed by the department for approval by the Legislature in
accordance with the provisions of article three, chapter twenty-
nine-a of this code: Provided, That the source patient whose blood
or body fluids is being tested pursuant to this section must have
come into contact with a medical or emergency responder or other
person in such a way that a significant exposure has occurred;

(4)When there is no record of any HIV-related testing during
pregnancy and the woman presents for labor and delivery.

(b) A patient voluntarily consents to the test as follows:

(1) The patient is informed either orally or in writing that
HIV-related testing will be performed as part of his or her routine
care, that HIV-related testing is voluntary and that the patient
may decline HIV-related testing (opt-out); or

(2) The patient is informed that the patient's general consent
for medical care includes consent for HIV-related testing.

(c) A patient refuses to consent to the test if a patient
opts-out of HIV-related testing, the patient is informed when the
health care provider in the provider's professional opinion
believes HIV-related testing is recommended, and that HIV-related
testing may be obtained anonymously at a local or county health
department.

(d) Any person seeking an HIV-related test in a local or
county health department or other HIV test setting provided by the
commissioner who wishes to remain anonymous has the right to do so,
and to be provided written informed consent through use of a coded
system with no linking of individual identity to the test request
or results.

(e) No option to opt-out of HIV-related testing is required
and the provisions of subsection (a) and (b) of this section do not
apply for the following:

(1) A health care provider or health facility performing an
HIV-related test on the donor or recipient when the health care
provider or health facility procures, processes, distributes or uses a human body part (including tissue and blood or blood
products) donated for a purpose specified under the uniform
anatomical gift act, or for transplant recipients, or semen
provided for the purpose of artificial insemination and such test
is necessary to assure medical acceptability of a recipient or such
gift or semen for the purposes intended;

(2) The performance of an HIV-related test in documented bona
fide medical emergencies, as determined by a treating physician
taking into account the nature and extent of the exposure to
another person, when the subject of the test is unable or unwilling
to grant or withhold consent, and the test results are necessary
for medical diagnostic purposes to provide appropriate emergency
care or treatment to a medical or emergency responder, or any other
person who has come into contact with a source patient in such a
way that a significant exposure necessitates HIV-testing or to a
source patient who is unable to consent in accordance with rules
proposed by the department for approval by the Legislature in
accordance with article three, chapter twenty-nine-a of this code:
Provided, That necessary treatment may not be withheld pending HIV
test results: Provided, however, That all sampling and HIV-testing
of samples of blood and body fluids, without the opportunity for
the source patient or patient's representative to opt-out of the
testing, shall be through the use of a pseudonym and in accordance
with rules proposed by the department for approval by the
Legislature in accordance with article three, chapter twenty-nine-a of this code; or

(3) The performance of an HIV-related test for the purpose of
research if the testing is performed in a manner by which the
identity of the test subject is not known and may not be retrieved
by the researcher.

(f) Mandated testing:

(1) The performance of any HIV-related testing that is or
becomes mandatory by court order or other legal process described
herein does not require consent of the subject but will include
counseling.

(2)The court having jurisdiction of the criminal prosecution
shall order that an HIV-related test be performed on any persons
charged with any of the following crimes or offenses:

(i) Prostitution; or

(ii) Sexual abuse, sexual assault, incest or sexual
molestation.

(3) HIV-related tests performed on persons charged with
prostitution, sexual abuse, sexual assault, incest or sexual
molestation shall be confidentially administered by a designee of
the bureau or the local or county health department having proper
jurisdiction. The commissioner may designate health care providers
in regional jail facilities to administer HIV-related tests on such
persons if he or she determines it necessary and expedient.

(4) When the Commissioner of the Bureau of Public Health knows
or has reason to believe, because of medical or epidemiological information, that a person, including, but not limited to, a person
such as an IV drug abuser, or a person who may have a sexually
transmitted disease, or a person who has sexually molested, abused
or assaulted another, has HIV infection and is or may be a danger
to the public health, he or she may issue an order to:

(i) Require a person to be examined and tested to determine
whether the person has HIV infection;

(ii) Require a person with HIV infection to report to a
qualified physician or health worker for counseling; and

(iii) Direct a person with HIV infection to cease and desist
from specified conduct which endangers the health of others.

(5) If any person violates a cease and desist order issued
pursuant to this section and, by virtue of that violation, the
person presents a danger to the health of others, the commissioner
shall apply to the circuit court of Kanawha County to enforce the
cease and desist order by imposing any restrictions upon the person
that are necessary to prevent the specific conduct that endangers
the health of others.

(6) A person convicted of the offenses described in this
section shall be required to undergo HIV-related testing and
counseling immediately upon conviction and the court having
jurisdiction of the criminal prosecution may not release the
convicted person from custody and shall revoke any order admitting
the defendant to bail until HIV-related testing and counseling have
been performed and the result is known. The HIV-related test result obtained from the convicted person is to be transmitted to
the court and, after the convicted person is sentenced, made part
of the court record. If the convicted person is placed in the
custody of the Division of Corrections, the court shall transmit a
copy of the convicted person's HIV-related test results to the
Division of Corrections. The HIV-related test results shall be
closed and confidential and disclosed by the court and the bureau
only in accordance with the provisions of section three of this
article.

(7) The prosecuting attorney shall inform the victim, or
parent or guardian of the victim, at the earliest stage of the
proceedings of the availability of voluntary HIV-related testing
and counseling conducted by the bureau and that his or her best
health interest would be served by submitting to HIV-related
testing and counseling. HIV-related testing for the victim shall
be administered at his or her request on a confidential basis and
shall be administered in accordance with the Centers for Disease
Control and Prevention guidelines of the United States Public
Health Service in effect at the time of such request. The victim
who obtains an HIV-related test shall be provided with pre and
post-test counseling regarding the nature, reliability and
significance of the HIV-related test and the confidential nature of
the test. HIV-related testing and counseling conducted pursuant to
this subsection shall be performed by the designee of the
commissioner of the bureau or by any local or county health department having proper jurisdiction.

(8) If a person receives counseling or is tested under this
subsection and is found to be HIV infected and the person is not
incarcerated, the person shall be referred by the health care
provider performing the counseling or testing for appropriate
medical care and support services. The local or county health
departments or any other agency under this subsection may not be
financially responsible for medical care and support services.

(9) The commissioner of the bureau or his or her designees may
require an HIV test for the protection of a person who was possibly
exposed to HIV infected blood or other body fluids as a result of
receiving or rendering emergency medical aid or who possibly
received such exposure as a funeral director. Results of such a
test of the person causing exposure may be used by the requesting
physician for the purpose of determining appropriate therapy,
counseling and psychological support for the person rendering
emergency medical aid including good Samaritans, as well as for the
patient, or individual receiving the emergency medical aid.

(10) If an HIV-related test required on persons convicted of
prostitution, sexual abuse, sexual assault, incest or sexual
molestation results in a negative reaction, upon motion of the
state, the court having jurisdiction over the criminal prosecution
may require the subject of the test to submit to further HIV-
related tests performed under the direction of the bureau in
accordance with the Centers for Disease Control and Prevention guidelines of the United States Public Health Service in effect at
the time of the motion of the state.

(11) The costs of mandated testing and counseling provided
under this subsection and pre and postconviction HIV-related
testing and counseling provided the victim under the direction of
the bureau pursuant to this subsection shall be paid by the bureau.

(12) The court having jurisdiction of the criminal prosecution
shall order a person convicted of prostitution, sexual abuse,
sexual assault, incest or sexual molestation to pay restitution to
the state for the costs of any HIV-related testing and counseling
provided the convicted person and the victim, unless the court has
determined the convicted person to be indigent.

(13) Any funds recovered by the state as a result of an award
of restitution under this subsection shall be paid into the State
Treasury to the credit of a special revenue fund to be known as the
"HIV-testing fund" which is hereby created. The moneys so credited
to the fund may be used solely by the bureau for the purposes of
facilitating the performance of HIV-related testing and counseling
under the provisions of this article.

(g) Nothing in this section is applicable to any insurer
regulated under chapter thirty-three of this code: Provided, That
the commissioner of insurance shall develop standards regarding
consent for use by insurers which test for the presence of the HIV
antibody.

(h) Whenever consent of the subject to the performance of HIV-related testing is required under this article, any such consent
obtained, whether orally or in writing, shall be considered to be
a valid and informed consent if it is given after compliance with
the provisions of subsection (b) of this section.